Presently before the court is plaintiff National Union Fire Insurance Company's ("National Union") motion for summary judgment. For the reasons set forth below, we deny the motion and sua sponte dismiss National Union's complaint on behalf of all defendants.

I. Summary Judgment Standard

Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

On August 10, 1989, Cannonito and Steck filed a complaint in the Circuit Court of Cook County, alleging unlawful trespass by Madden. Steck v. Thos. M. Madden & Co., No. 89 CH 7082. Cannonito, Steck, Joseph T. Zieminski and Carol Marynowski
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filed a second suit against Madden on November 8, 1990, in which they alleged additional unlawful acts committed by Madden while occupying Steck and Cannonito's property without consent. Steck v. Thos. M. Madden & Co., No. 90 M6 6292. The two state-court actions were consolidated on December 10, 1990. On May 30, 1991, the underlying plaintiffs filed an amended complaint containing two counts. Count I alleged that Madden negligently failed to survey and ascertain the ownership of the property on which the company erected the cement batch plant. Count II alleged unlawful trespass by Madden as well as wilful and wanton acts causing damage to the land. On June 19, 1992, the state court granted plaintiffs' motion for voluntary dismissal. Plaintiffs subsequently refiled the action on July 9, 1992, alleging the same causes of action in negligence and trespass, but adding as defendants Dew and Brites Cartage, Ltd.

National Union, a New York Corporation, issued two commercial general liability insurance policies to Madden, Nos. 817-14-25 RA (effective May 21, 1988 to July 6, 1989) and 817-31-84 RA (effective July 6, 1989 to July 6, 1990). Both policies were, of course, subject to certain terms, conditions, limitations, and exclusions. Madden first notified National Union of the underlying action on or about May 21, 1991, just prior to the filing of the first-amended complaint. On December 27, 1991, National Union filed this diversity action pursuant to the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202 (1988). It is seeking a declaration that it owes no duty to defend or to indemnify Madden under these policies against the underlying claims pending in the Circuit Court of Cook County.
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In support of its current contention that it is not obligated to defend Madden in the underlying suit, National Union maintains that: (1) Madden breached the notice provision of the policies; (2) Madden acted intentionally and, hence, there was no occurrence" as defined by the policies; (3) Madden acted intentionally and, thus, coverage is excluded by the "expected or intended" provision of the policies; and (4) any damage resulting from fill material deposited by Madden does not constitute "property damage" as such material are "pollutants" as defined under the policies. There can be no doubt that plaintiffs' negligence claim in the underlying action potentially falls within the policies' coverage. The issue presently confronting the court is whether we may look beyond the allegations of the underlying complaint to consider the "defenses" as asserted by National Union.

Of the four above mentioned "defenses" set forth by National Union in support of summary judgment, only one can be considered ancillary to the underlying dispute, i.e., whether Madden breached the notice provision of the policies. Accordingly, we will look beyond the allegations of the underlying complaint in order to ...

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